Good afternoon, and thank you to the committee for inviting me to give evidence.
I think the questions the committee is examining are drawing out some of the inherent tensions that exist within the extradition system. The need to ensure effective co-operation for prosecution and punishment of criminal offences has to be balanced against the need to protect civil liberties and human rights. The United Kingdom has grappled with these issues on a number of occasions.
In 2010, I was appointed to be part of a panel to review the United Kingdom's extradition arrangements. When undertaking this task, we were very aware that we had to take into account the potentially serious consequences for a person who may be sent to face trial in an unfair legal system where they may in fact be dealing with a language they do not speak and with little or no support from family, friends or their community.
We also looked at the fact that we wanted to try to recognize the potential shortcomings of the extradition system itself and the requesting country, while not allowing this to become a complete bar to extradition, except in extreme situations. This can be made more difficult when decisions are made during the extradition process by politicians because these are often interpreted by the requesting state as being diplomatic rather than judicial decisions. They can lead to potential diplomatic repercussions.
In today's world, with globalization and technological advances, it is increasingly common that more than one country may have jurisdiction to prosecute. This is leading to increasing public debate as to how the question of which country should prosecute is decided and extradition cases can often cause this issue to come to the fore.
I thought it might assist the committee if I explain very briefly a few of the changes the U.K. has made to its extradition law to deal with specific problems it has faced.
In particular, there was an issue in relation to requests from other EU member states because they have what's called the “principle of legality”. That means they will make a request for any extradition offence, no matter how minor it might be, because there is no discretion involved in deciding whether to make a request. That led the U.K. to be concerned that extradition was being granted for what may be seen to be relatively trivial offences, so it introduced a proportionality bar. The U.K. can now look at the seriousness of the conduct, the likely penalty that might be imposed and whether there are less coercive measures that might be employed rather than extradition.
A further issue that has arisen is in relation to the ability of the U.K. to [Technical difficulty—Editor] evidence as part of the extradition process. For most countries, evidence is not required either because they're EU member states, because they're parties to the European Convention on Extradition or because they are trusted partners of the United Kingdom. Those include Australia, New Zealand, Canada and the U.S.
The U.K., therefore, relies to a large extent on the court's ability to invoke its abuse of process jurisdiction to protect where there may be improprieties in relation to the extradition process itself.
There is also a question about whether somebody who is a resident or a national of the U.K. should be extradited to face prosecution in another country. As I said in my first remarks, I think this actually goes to a question of where somebody should be prosecuted. Very few people are suggesting there should be impunity and that simply because you are, for example, a U.K. national, you shouldn't be subject to prosecution if there is sufficient evidence to justify it.
In the U.K., they have introduced a forum bar. Where there is a substantial [Technical difficulty—Editor] conduct that takes place in the U.K.—which means the U.K. could prosecute—the court can consider whether it's in the interest of justice for extradition to take place. There are a specified number of factors that the court can take into account, but it can take only those factors into account.
The court also considers human rights and it must do so. If there is a real risk of a violation of a human right, then this will lead the court to bar extradition. One of the rights is article 8 of the European Convention on Human Rights, which relates to the private and family life. This can allow a court to consider, firstly, the effect on other people of extradition, most particularly the effect on children of the extradition of their parents, for example. It can also allow the court to consider the effect on the requested person. It has to carry out its own proportionality exercise.
Ordinarily, the court obviously finds that extradition is justified, given the need to prosecute serious crimes, and the need to co-operate internationally, but it does allow flexibility for the court to take into account whether there are other reasons why it would be [Technical difficulty—Editor] in a particular case.
The other thing I'd like to finish with is this. I've seen that one of the issues in Canada [Technical difficulty—Editor] seemingly to the role of the prosecutor. It's probably worth emphasizing that within the U.K., whilst extradition cases are dealt with by the prosecution service, which is the U.K.'s national prosecutor, it acts as a minister of justice in extradition cases. Therefore, it owes an [Technical difficulty—Editor] acts fairly, and it also has a specific obligation to disclose evidence it's aware of that might undermine, or weaken, the request it's prosecuting if it's within [Inaudible—Editor]. It also has an overriding obligation of fairness.
I hope it gives the committee some examples, and ideas of how the U.K. has tried to deal with some of these issues. I'd be very happy to answer any further questions.